Wednesday, May 30, 2012

As the defense rested its case Tuesday in the Archdiocese of Philadelphia sex abuse trial, the momentum in the courtroom appeared to be shifting. The question is whether it had moved enough to matter.

A month ago, the prosecution appeared so far out in the lead, they were paring down witness lists, and playing it safe, as they strove to protect a big fourth-quarter lead. Sure there were problems with the Father James J. Brennan side of the case, but the evidence against Msgr. William J. Lynn seemed stacked so high the only question was when the monsignor went down, would that giant sucking sound take Father Brennan along with him.

But then Judge M. Teresa Sarmina, who had been pro-prosecution all the way, suddenly whacked two conspiracy charges off the prosecution's case. Next the defense stole the prosecution's alleged smoking gun -- that list of 35 abuser priests drawn up by Lynn and ordered shredded by Cardinal Bevilacqua -- and turned it around, using that same evidence to show that Lynn may have been just a patsy.

Yesterday, the last shoe to drop was Assistant District Attorney Patrick Blessington's anti-climactic finish to his three-day cross-examination of Msgr. Lynn, a performance that was toned-down from the previous fireworks. By the time Blessington limped to the finish, it sure seemed like the prosecutor had run out of steam. That's the risk you take when you stretch a cross over three days, but maybe the prosecution is still so far ahead, it won't matter.

The jury may decide that what happened to children in the archdiocese was so horrific that somebody has to pay. It may not matter that the district attorney's office sent the jury the equivalent of a corporal and a private to pay for the sins of a marauding army that evidence in the case showed had been raping and sexually abusing innocent children since 1948.

After all, the prosecutors didn't have the nerve to indict the retired general who oversaw the most recent crime wave, and they didn't charge anybody else in the general's high command who's still around, and should have to answer for what happened. Maybe the jury will be too angry to notice that bait and switch. But that doesn't mean the rest of us have much to cheer about.

On Wednesday, the jury will be home, but lawyers from both sides will meet in court to argue over the wording of the judge's jury instructions over the charges in the case against Msgr. Lynn and Father Brennan. Closing arguments are scheduled for Thursday, and the case may go to the jury as early as Friday.

The national media has descended on Philadelphia, as excitement builds over the fate of Msgr. Lynn, the highest-ranking Catholic administrator in the country to be criminally charged in the clerical sex abuse epidemic. In recent days, The New York Times, National Public Radio and CBS news have all descended on Courtroom 304 in the Criminal Justice Center. Why if the story gets any bigger, maybe even clueless Fox 29 will show up with a camera crew.

The first order of business dealt with Tuesday was that Judge Sarmina had to rule on a motion filed over the weekend by the defense that attempted to whack two more charges from the prosecution case. This time, the defense targeted two endangering the welfare of children [EWOC] charges, one against Msgr. Lynn, and one against Father Brennan, over Father Brennan's alleged 1996 attempted rape of then 14-year-old Mark Bukowski. [The judge had recently struck down charges that Lynn and Brennan had engaged in a conspiracy to endanger the welfare of children.]

To anybody who could do basic math, the defense motion sure seemed to make sense. The law in effect in 1999 said that Pennsylvania residents had until two years after their 18th birthday to file EWOC charges. Bukowski turned 18 on Sept. 23, 1999, meaning that the commonwealth had until September 2001 to file the EWOC charges. The current EWOC charges were not filed until 2010, so it wasn't even close.

The prosecution, however, in its brief argued that Father Brennan had been engaged in a "continuing course of conduct" that began when the priest was "grooming" Bukowski and went on for 10 years, ending in 2006, when Father Brennan was removed from ministry. Thus according to the commonwealth's argument, the victims in the case not only included Bukowski, but "children both named and unnamed, that were supervised by Father Brennan."

The only problem is that no other victim has come forward to say that Father Brennan had abused him, despite a massive search by law enforcement authorities and the archdiocese. The campaign included articles in area newspapers, television ads, and 10,000 letters mailed to former parishioners and children formerly supervised by Father Brennan.

Alan J. Tauber, one of Msgr. Lynn's defense lawyers, told Judge Sarmina that the Commonwealth's miss of the statute of limitations was so egregious that it should trouble the judge's conscience. That, of course, was fighting words to anybody wearing robes. But Tauber pressed on, arguing that the judge should be "compelled to rule" that the two EWOC charges be tossed.

Assistant District Attorney Blessington dismissed the motion to dismiss as "another last-ditch attempt, a Hail Mary if you will" that was "out of bounds."

The judge sided with Blessington, ruling that "the motion to dismiss is denied," handing the Commonwealth a victory that would trouble any civil libertarian. This on top of a prosecution case that went on for eight weeks, claiming that Msgr. Lynn and Father Brennan had entered into a conspiracy to harm children, even though the prosecution never presented one shred of evidence to support that. Observers were left to wonder why Father Brennan was even in the courtroom most days, as the vast majority of evidence in the case, and some 43 out of 48 prosecution witnesses, had absolutely nothing to do with him.

If the prosecutors believed Father Brennan attempted to rape Mark Bukowski, why on earth wasn't he tried separately? It would have been over in two weeks. With no connection between Father Brennan and Msgr. Lynn, it made absolutely no sense to try the two together.

From what little I know about the law, missing the statute of limitations on the EWOC charges may be heard in the future by an appeals court. The continuing course of conduct language is a holdover from conspiracy charges that no longer exist. Without the conspiracy charges, Father Brennan is accused of an attempted rape in 1996, but the applicable statute of limitations expired in 2001, and the Commonwealth missed it by 9 years. It's as simple as that. But maybe the judge is hoping the jury will do her dirty work for her, and acquit the two defendants on the EWOC charges, as in no harm, no foul.

Again, because the judge has a gag order up on this case that's been in effect all year, lawyers on both sides are prohibited from talking to the press. None of them can come out from the bunkers, and shed any light on the issue, thanks to that champion of the First Amendment, Judge Sarmina.

After the judge made her ruling, Blessington continued his cross-examination of Msgr. Lynn. Blessington inquired about a 1992 memo from the secret archive files written by Lynn that advised Father Robert L. Brennan [no relation to defendant James J. Brennan] to "keep a low profile" after he had been accused of inappropriately touching some 20 boys.

The investigation of Father Robert L. Brennan was conducted by Msgr. James E. Molloy, with Lynn working as his assistant and note-taker. Blessington wanted to know why Lynn and Molloy were telling that other Father Brennan to keep a low profile.

"We were telling him we were concerned about him, that he might be a danger to someone else," Lynn told the dubious prosecutor. "Everything was done in that context."

Blessington noted that such a concern was not expressed in Lynn's memo. "It's not documented anywhere," the prosecutor said. "You're just making it up now."

"Absolutely incorrect," the monsignor responded.

[Msgr. Lynn, Father James J. Brennan, and Father Edward V. Avery were the original defendants in this case. Avery has already pleaded guilty. But the judge also allowed the prosecution to present 21 case files from additional priests, such as Father Robert L. Brennan, for the purposes of showing a pattern of conduct in the archdiocese. Tellingly, the vast majority of Blessington's cross examination dwelled on the 21 additional priests.]

Blessington brought up the case of Father Michael J. McCarthy, who, besides molesting teenage boys, moonlighted as a travel agent. Blessington wanted to know why Msgr. Lynn didn't remove Father McCarthy from ministry after he was accused of such offenses as masturbating a teenage boy who slept over the priest's beach house in his bed.

"I couldn't do anything," Msgr. Lynn responded. The monsignor said that the cardinal had sent Father McCarthy out for psychiatric evaluation, but kept the results of that evaluation to himself. Only the cardinal had the power to remove McCarthy, Lynn said, and it couldn't be done without a diagnosis of pedophilia.

What got Father McCarthy into real trouble was when a rival travel agent complained to the cardinal that the priest was horning in on a business whose owner had just made a $25,000 donation to Catholic Life 2000.

The complaint by the rival travel agent prompted the cardinal in 1993 to order Lynn to do a "high priority" investigation of Father McCarthy. Lynn searched the priest's rectory room and found 13 gay porno videos and travel brochures promoting a gay cruise to Thailand.

Lynn argued that the two issues, Father McCarthy's alleged abuse of boys, and his travel business, "were not connected at all."

But when Blessington dared the monsignor to cite another case where he had done so much investigating so quickly, the monsignor said he couldn't recall one "off the top of my head."

Earlier in his cross, Blessington had repeatedly calling Lynn a liar, up to 14 times in one hour, or once every four minutes. But during 90 minutes of questioning Tuesday, Blessington only accused Lynn of lying a few times.

After Lynn found the gay porno and gay cruise brochures, Father McCarthy was sent out for another evaluation. This time he was diagnosed to have "homosexual ephebophilia," an attraction to post-pubescent boys. In the secret archive files, the therapists who treated Father McCarthy cited his "sexual acting out behavior" with eight high school boys who stayed over his beach house, where the priest slept naked with his overnight guests.

Lynn said the problem was that Father McCarthy was challenging his diagnosis, and under canon law, he could have won an appeal to the Vatican. In the secret archive files, the monsignor paid lip service to checking up on the original diagnosis, but when he called the priest's therapists, they said they got it right the first time.

"I didn't expect the diagnosis would change," Lynn said. "I was trying to keep him out of ministry."

When Blessington challenged how Msgr. Lynn handled another pedophile priest, Msgr. Lynn responded, "I did much more than had been done previously."

Blessington read the names of accused abusers on Lynn's famous list of 35 priests. Lynn told the prosecutor that he gave that list "to my superiors."

"Now we're back to blaming the bosses," Blessington said.

Lynn replied that Cardinal Bevilacqua "wasn't going to remove anybody without a diagnosis" of pedophilia. "I was trying to do the right thing."

Finally, after three days of cross-examination, Blessington asked Msgr. Lynn about his co-defendant, Father James J. Brennan. A memo had gone to the monsignor that Father Brennan had boarders staying over in the guest room of his priestly residence at Divine Providence Village. First, it was a former high school student, then it was Brennan's older brother, who testified he was reeling from a divorce,

Meanwhile, Father Brennan in his own letters to the archdiocese had talked about how he had been unable to faithfully serve parishioners, and like the prodigal son, had squandered his fortune on riotous living.

Didn't language like, plus the roommates, set off any red flares, Blessington asked.

No, the monsignor said, that's the way priests talk when they're asking for a leave of absence.

Blessington asked about Father Edward V. Avery, a co-defendant who before the trial began, pleaded guilty to involuntary deviant sexual intercourse with a 10-year-old altar boy. When Father Avery was shipped out for psychiatric evaluation, Lynn told a parishioner the priest was resigning for health reasons.

That was a lie, wasn't it, Blessington asked, showing flashes of his former anger.

"That was the not a true statement in the letter," Lynn acknowledged. Once again, Lynn blamed the false statement on the late cardinal, who had a policy of not allowing the monsignor to tell parishioners the real reason why abuser priests were taken out of ministry.

"I was not allowed to explain why the priest was not at the parish," the monsignor said.

"Who was doing the bidding of the cardinal at every turn of the road?" Blessington countered.

"I was doing what I was supposed to do," Lynn replied. The monsignor said that Father Avery was transferred to another parish where "he did not have ministry with children."

That angered Blessington, who pointed out that at his new assignment at St. Jerome's, Father Avery occasionally said Mass a couple times a year to up to 600 to 750 children at a time. Father Avery was also allowed to perform as a disc jockey at a grade school dance, where he could "act like a pied piper," Blessington said.

"It happened once and it was stopped," Lynn told the jury about the dance.

Lynn conceded, however, that when Father Avery raped the ten-year-old altar boy at St. Jerome's, it was the one time on his watch that an abuser priest under his supervision had abused a child.

"Now you're sorry, after three days" of cross-examination, Blessington cracked.

Sunday, May 27, 2012

It was billed as the prosecution's smoking gun -- a worn gray folder of documents passed out to the jury, just before the prosecution rested its case.

Inside the folder were several typed and handwritten documents, including a 1994 list of 35 then-active priests compiled by Msgr. William J. Lynn who had been either convicted or accused of sexual abuse of minors. The list was ordered shredded by Cardinal Bevilacqua in 1994, but 18 years later, the list and the gray folder mysteriously reappeared in a locked safe at archdiocese headquarters.

The smoking gun was supposed to be proof of a conspiracy to protect the Catholic Church and keep its shameful sexual abuse of children hidden at all costs. But last week, as the defense presented its case, the smoking gun took on another meaning.

The way the defense spun it, the smoking gun was proof that Msgr. Lynn had done his best to expose sexually abusive priests in the ministry, and put his bosses on notice about them. The story of how Lynn's superiors handled that folder, as well as their author, was proof that the monsignor was out of the real power loop in the archdiocese.

When the defense got through telling its version of the story, the smoking gun was left pointing at Cardinal Bevilacqua and his three top assistants. The defense's ability to hijack the prosecution's key piece of evidence for their own purposes prompted one former federal prosecutor to say it was another indication that the case against Lynn should have been dismissed on legal grounds before the trial even started.

It's useful to follow the defense testimony of what happened to the smoking gun after Lynn compiled his list of 35 abuser priests.

The secretary for clergy was summoned to appear at the March 15, 1994 "issues meeting." This was a cabinet level meeting held monthly at the archdiocese, usually between Cardinal Bevilacqua and his No. 2 in command, Bishop Edward P. Cullen, then vicar for administration.

A third top official who often attended the issues meetings was Msgr. James E. Molloy, then assistant vicar for administration. The meetings, which could go on all day, were usually held at the cardinal's mansion on the Main Line, but the March 15, 1994 session was moved to archdiocese headquarters at 222 N. 17th St.

Lynn was told to bring all his documents regarding the list, to the issues meeting. When he got there, Lynn was greeted by Bevilacqua, Cullen and Molloy.

Lynn's superiors questioned him about the list and the Dux memo he had written that was attached to the list. Father James Dux was a priest accused of sexually abusing some 11 minors dating back to the 1960s. Lynn began investigating Dux in 1992; in 1994, Cardinal Bevilacqua talked Dux into retiring.

Lynn's story is that after the Dux investigation, he started to wonder if there was "anybody else in active ministry who had live claims against him," as he told the grand jury. So Lynn and his assistant, Msgr. James Beisel, began working nights, combing through all 323 files in the secret archives, to compile their list of abuser priests in active ministry. It took two or three weeks to finish the job.

"It seems to me I was trying to give a full picture of sex abuse here,"Lynn told the grand jury. "The people above me should know what's going on."

The memo cited the Dux case as the impetus for the search. It also stated the results of the search. Lynn and Beisel discovered that the archdiocese had 35 active priests accused or convicted of sex abuse of minors. The Dux memo said the list contains three confirmed pedophiles, a dozen priests who had been found guilty of or had confessed to sexually abusing minors, and 20 additional priests accused of sexually abusing minors.

After Lynn was questioned about the documents in the gray folder, he was dismissed by his superiors, but told to leave behind all his documents. Molloy, who died in 2006, left a handwritten memo that described what happened next. "On March 22, 1994, at 10:45 a.m., I shredded, in the presence of Rev. Joseph R. Cistone, four copies these lists from the secret archives," Molloy wrote. "The action was taken on the basis of a directive I received from Cardinal Bevilacqua at the issues meeting of March 15, 1994 ..."

But Molloy also stated in his handwritten memo that he kept one copy of the list, which turned out to be Lynn's copy, that was kept in the office of the secretary for clergy. It was found there in a locked safe in February 2012, less than two weeks after Bevilacqua died on Jan. 31.

Lynn told the jury this week that he did not learn of the shredding of the documents until February 2012, 18 years after he left the gray folder with his bosses. Talk about being out of the loop!

A true smoking gun points only one way, making one side's case, but not both sides, said Fred Tecce, a former federal prosecutor and TV commentator who has publicly questioned the case against Lynn.

Tecce describes the prosecution's case like this: "horrible things happened to children in the Archdiocese of Philadelphia, some one needed to be held responsible, and the only guy in the courtroom that could fit that bill was Msgr. Lynn."

"While it's true that horrible things did happen to children in the archdiocese, and something really needs to be done to address that," Tecce said, "under the law and the facts, it's not appropriate to hold Lynn responsible. That's not the way the law is supposed to work."

In other words, we don't discover a horrible crime and then round up somebody to blame for it. We have rules of law that govern society, and when people break those laws, we charge them with crimes, Tecce said. Through no one's fault the existing laws were not broad enough to prosecute the church for its past conduct. That will not be the situation going forward, Tecce said.

As the defense showed this week, Lynn didn't have the power in the archdiocese to transfer priests from one parish to another. He also didn't have the power to remove a priest from active ministry, unless the priest confessed to him first that he had sexually abused children. But most priests accused of sexual abuse of minors denied those allegations when Lynn confronted them, according to the testimony of Lynn and his two assistants.

The only man in the archdiocese who had the power to transfer priests or take them out of active ministry was the late Cardinal Bevilacqua.

The prosecutor can talk all day about how Lynn never called the police when he found out about an allegation of sex abuse, Tecce said. Lynn's testimony last week was that most of the people he interviewed who claimed they were sexually abused as minors by priests were usually in their 20s and 30s when they came forward, so the alleged crimes did not fall within the statute of limitations.

But Lynn is not charged with failure to notify authorities, he is charged with conspiracy to endanger the welfare of minors by allowing abuser priests to continue in ministry. But if Lynn did not have the power to move priests around from parish to parish, or take them out of active ministry, then he did not have the power to endanger the welfare of children, Tecce said.

By charging Lynn with conspiracy to endanger the welfare of minors, the prosecutors are "attempting to expand the scope of the statute," Tecce said. "I don't think that's appropriate."

Tecce's contrarian view of the archdiocese case extends to the prosecution's cross-examination of Lynn. During the cross, which will be going into its third day when court resumes Tuesday, Assistant District Attorney Patrick Blessington has been pounding away, calling Lynn a liar up to 14 times an hour, or once every four minutes.

"I would cross-examine the guy, treat him with respect, and be done with it in 45 minutes," Tecce said. "But I don't have command of all the facts and I'm not there in the courtroom. He [Blessington] is and that's his style. Time will tell which was the right approach."

Thursday, May 24, 2012

At the Catholic sex abuse trial, it was good day to feel like throwing up.

On the witness stand Thursday, an amiable and smiling Monsignor William J. Lynn tried to defend the indefensible, by explaining away the Archdiocese of Philadelphia's criminal conduct of the past fifty years. It's hard to justify how the church could repeatedly offer up its own innocent children as a regular sacrifice to the unbridled lusts of rampaging predator priests, but Lynn gave it a try, with predictable results.

But that wasn't the only sickening sight in Courtroom 304. Over at the prosecution table, Assistant District Attorney Patrick Blessington was a study in fire-breathing indignation, as he pummeled the hapless monsignor for more than four hours, without showing any mercy, or common sense.

Who would want to see Mike Tyson in his prime whaling away on the Pillsbury doughboy? No wonder jurors often looked away as the bloodsport went on unabated, without anyone in Lynn's corner tossing in the towel, or the judge calling the bout.

Blessington could have dissected Lynn on the facts, but instead he chose to repeatedly insult and demean a man in a priest's collar who wasn't fighting back. It seemed like the ideal way to create sympathy for Lynn among jurors. It may be the only way the defense has left to possibly win the case.

Meanwhile, in the courtroom, there was the odd spectacle of at least a dozen of Lynn's parishioners from St. Joseph's in Downingtown who showed up to support their pastor by watching and praying and clutching rosary beads.

So there was a Mass and a Wrestlemania match going on simultaneously in Court 3004, but it was one of those matches that featured a pumped-up superstar pounding away on a scrawny stiff. Not for the faint-hearted.

After nine weeks of trial, no new facts came out. Instead, both sides cited facts already in evidence ad nauseum as justification for their unreasonable positions, without shedding any new light on any subject.

Monsignor Lynn kept saying he did the best he could to protect children under the circumstances, which just doesn't wash. Lynn tried to explain how, during a horrific epidemic of rape and molestation of children, his office never called the police, never went looking for other victims -- even when they were given the names of other victims -- and didn't tell the truth to parishioners, victims and parents, as abusers were transferred from parish to parish, so that they could destroy more innocent lives.

He also tried to claim that the church was more interested in protecting children, rather than keeping predator priests out of jail and the civil courts, and the old archdiocese free from scandal, all of which seems self-evident at this point.

As for the prosecutor, his disdain for the monsignor was spread thicker than chunky peanut butter on a saltine cracker. On both days of his cross-examination, Blessington didn't even say hello to the monsignor, he didn't stand to address him, he just fired away from a seated position at the prosecution table.

On Thursday, Blessington repeatedly called Lynn a liar. In one hour, Blessington called Lynn a liar, or charged him with lying, 14 times, or once every 4 minutes. He usually made these charges while holding his chin in hand, his tone reeking of disgust. And when he got through pointing out all the lies in Lynn's grand jury testimony, Blessington would disdainfully toss another bound volume on a table behind him, as if he was putting out the trash.

"You understand, you can't change the words on the documents," Blessington shouted at Lynn. "You have to admit your lies."

Other Blessington shots at the monsignor:

-- "Clarification, truth lies, It really doesn't matter, does it?"

-- "We can save some time if you admit you lied."

-- "You never lied to anybody, did you?"

-- "More lies!"

-- "You understand you're being caught in lies upon lies?"

-- "You're making it up as you're going along, aren't you?"

Then there were exchanges like this:

Blessington: "You did nothing."

Lynn: "I did my best."

Blessington: "By your standards, your best is nothing."

And:

Blessington: "You think this is funny?"

Lynn [smiling]: "No, I don't know how you want me to answer."

Blessington: "How bout truthfully?"

At one point, Blessington accused Lynn of something new, namely hiding the list he had compiled of 35 abuser priests in a locked safe in a file room in Lynn's old office on the 10th floor of archdiocese headquarters.

"Absolutely not," the monsignor said.

Whose safe was it, Blessington wanted to know.

"I have no idea," the monsignor said.

"You expect this jury to believe this testimony?"

At another point, when Blessington again accused Lynn of lying, the monsignor said, "No, you're twisting the words I said, putting your motives behind them."

Meanwhile, the monsignor was resigned to lines like, "I did not lie," and, "It fell through the cracks." He was talking about a psychiatric evaluation that was supposed to be scheduled for Father Stanley Gana, one of the archdiocese's most notorious rapists.

"I'm not happy that it fell through the cracks," the monsignor said. "I'm sorry it fell through the cracks."

The parishioners from St. Joseph's, however, said the monsignor was a good man.

"We believe in him,"Alfreda "Fritz" DiOttavio said of her pastor. "We heard about the trial, and we all wanted to go."

"He [Lynn] was always there for me," she said. When she was sick, and her husband was dying, the monsignor came calling to offer prayer and comfort.

Wednesday, May 23, 2012

At 11:10 a.m. Wednesday in Courtroom 304 of the Criminal Justice Center, defense lawyer Thomas Bergstrom stood up and made a surprise announcement.

"Your Honor, the defense calls Msgr. Lynn."

The monsignor left the defense table, where he had been held hostage the past eight weeks, and walked over to the witness stand to testify in his own defense.

The courtroom was packed with relatives and men in collars, who turned out to display their support for the archdiocese's former secretary for clergy. Lynn is on trial for conspiracy to endanger the welfare of children by allowing abuser priests to continue in ministry. He is the first Catholic administrator in the country to be charged for allegedly covering up sex abuse of minors by priests.

In three hours on the witness stand, the monsignor appeared relaxed, smiled often, and never raised his voice, even when the prosecutor was tossing fastballs at his head.

He said he stayed on the job as secretary for clergy for 12 years because, "I thought I was helping people." Lynn asserted that he provided pastoral care to fellow priests, as well as aid and counseling to victims of sex abuse.

Lynn, 61, testified that he had been a priest for 36 years. He said he only made recommendations about priestly assignments, and that only the cardinal had the power to move priests, or put them on administrative leave, or restrict their ministries.

Lynn said he decided to compile a list of abuser priests in 1994 after he was asked to investigate Father James Dux, accused of molesting at least 11 boys. Father Dux was encouraged to retire in 1994 by Cardinal Bevilacqua.

"It concerned me that there might be others like him," Lynn told the jury. The monsignor said he wanted "to look and see whether there were any other priests like James Dux out there, and get the names to my superiors."

Lynn told the jury how he combed through 323 secret archive files and compiled a list of 35 active priests accused or convicted of sexually abusing minors. He attached the list to a memo he wrote that talked about Father Dux spurring a search through the secret archive files.

Lynn said the last time he saw the list and the Father Dux memo was at an "issues meeting" he attended with his bosses, Bishop Edward P. Cullen, Msgr. James E. Molloy and Cardinal Bevilacqua. The cardinal ordered the list of 35 abuser priests shredded in 1994. Lynn said he didn't hear about the shredded memo until he was preparing for this case, and found out during a visit to his lawyer's office.

When a grand jury was investigating sex abuse in the archdiocese, Lynn was subpoenaed and asked to produce the list.

"I couldn't find it," Lynn testified.

Lynn's direct testimony ended in a flourish, when Bergstrom asked the monsignor why he didn't just quit his job as secretary for clergy, as some critics have suggested.

It's "not in my nature to do that," Lynn said. He explained he had a "simple faith" that "the will of God works through the bishop as far as your assignments are concerned." He said he preaches that belief to fellow priests. It was a belief that provoked classmates in the seminary to call him a fool, Lynn said with a smile. But the monsignor said he sincerely believed it, so how could he quit his job as secretary for the clergy under Cardinal Bevilacqua?

"It's just not who I am," Lynn said.

"That's all I have," Bergstrom said.

It was time for cross-examination. Assistant District Attorney Patrick Blessington didn't stand up. From his seat at the prosecution table, he just glared at Lynn.

"You said you were doing the will of God?" Blessington asked incredulously.

That's not what I said, Lynn told the prosecutor. He repeated his belief that the will of God works through the bishop, when he doles out assignments to priests.

Blessington brought up a passage from the Gospel of Luke, where Jesus warned that if anyone causes "little ones to stumble," it would better if for them they had a millstone around their neck.

What about that will of God, Blessington wanted to know. Did you really think when you were working as secretary for clergy, that you were actually helping children?

"I believe in my heart I was," Lynn testified.

"Didn't work out that way for Danny," the prosecutor said, referring to a victim who had been raped by a priest.

"I did my best for what I can do," Lynn replied.

Blessington brought up Msgr. James E. Molloy, who taught Lynn how to investigate sex abuse cases. He cited a handwritten note that he thought Molloy had written on a 1991 memo from Lynn. "Unnecessary statement," the note said. "Never admit to victims that there are other cases."

That wasn't Molloy's handwriting, Lynn told Blessington, that was Cardinal Bevilacqua's handwriting. That caused a stir in the courtroom, as Lynn dropped the dime on his dead boss. Bevilacqua was found dead on Jan. 31, a day after Judge M. Teresa Sarmina ruled the cardinal was competent to testify as a witness at this trial.

You did whatever the cardinal told you to do, Blessington asked.

"I did do what the cardinal asked," Lynn said.

Blessington asked if Lynn had ever lied to victims of sex abuse. Only once, Lynn said. Blessington sneered at that. The prosecutor charged that Lynn had also routinely lied to parishioners by not usually telling them the real reason that abuser priests were being removed from parishes, so they could be shipped out to sex clinics for psychiatric evaluations. But parishioners were told the priest had Lyme disease, Blessington said, or that Father was leaving for health reasons.

"The cardinal wouldn't allow me to announce why someone was leaving," Lynn responded. And the dead cardinal took another hit.

And as far as the one priest Blessington mentioned, "He did have Lyme disease," Lynn said.

As for protecting children, "I was doing that every day," Lynn said.

So why didn't he do more? "I didn't have any power," Lynn told the jury. "I could only make recommendations." Unless a priest confessed that he sexually abused someone, Lynn said. Then he had the power to remove a priest.

Blessington brought up several instances where the priests that Lynn shipped out for psychiatric evaluations had a pattern of abusing more children when they were transferred to new assignments. So you were harming kids with your actions, Blessington said.

"At that time, I had no knowledge that I was hurting kids," Lynn claimed.

Don't you know that pedophilia is incurable, the prosecutor asked.

"I did not," Lynn said.

Blessington brought up the shredded memo, and asked if it would be helpful to Lynn if that list of 35 abuser priests disappeared.

"No," Lynn said.

Blessington asked Lynn if he remembered who typed the list. "I believe I did," the monsignor responded. But he did not remember doing it. In previous testimony, Lynn's assistant. Msgr. James Beisel had told the jury he did not remember who typed the memo either.

Blessington suggested that Lynn's memory lapse showed how he didn't care about the safety of children.

Lynn disagreed, but didn't raise his voice. "It doesn't show I don't care," he said.

When court adjourned for the day, at 4 p.m., it appeared that Blessington was just getting warmed up. The cross-examination resumes Thursday morning.

Tuesday, May 22, 2012

The defense in the Archdiocese of Philadelphia sex abuse case Tuesday presented Monsignor William J. Lynn as a caring priest who occupied the "bottom rung" of the church hierarchy.

Lynn was one of six secretaries in the archdiocese who reported to Bishop Edward P. Cullen, the former vicar for administration, according to Msgr. Michael T. McCulken, who served as Lynn's assistant in the office for the clergy from 1994 until 1997.

"That would be the bottom rung?" Jeff Lindy, a defense lawyer for Msgr. Lynn suggested.

The bottom rung, agreed Msgr. McCulken.

The secretary for clergy functioned as a human resources department for the archdiocese, handling more than 800 priests, the seminarians at Saint Charles Borromeo Seminary, as well as retired priests.

McCulken estimated that he spent 10 percent of his time on sex abuse matters, and Lynn, about 15 percent. McCulken said that during his three years in the office for clergy, he worked on ten cases of alleged sex abuse. McCulken said that he and Lynn worked about 50 hours a week, including nights and weekends, and that Lynn usually went home with a thick valise of paperwork.

McCulken, prodded by Lindy, described the archdiocese chain of command to the jury. McCulken reported to Lynn, who reported to Msgr. James E. Molloy, the assistant vicar of administration, who reported to Bishop Cullen, the vicar of administration, who reported to Cardinal Bevilacqua.

The point was the cardinal was on top of the pecking order, and Lynn was at the bottom. Another defense witness who testified Tuesday, Msgr. Joseph Garvin, said that even regional vicars outranked Lynn.

McCulken testified that Lynn made the best of a difficult job. It was Lynn's responsibility every time a complaint of sex abuse came in to confront the accused priest. Then, if the priest denied it, and most usually did, it was Lynn's job to talk the priest into voluntarily checking himself into St. John Vianney, the archdiocese-owned sex clinic, for a psychiatric evaluation.

Lynn was successful in talking the "vast majority" of accused priests into voluntarily checking into St. John Vianney, McCulken testified.

McCulken described the secret archive files to the jury as two locked file cabinets in the records room on the 12th floor office of the vicar for administration. The room also contained a six-foot high safe that held the wills of Philadelphia's archbishops, as well as the beatification files for Mother Katharine Drexel, who was made a saint in 1988.

In addition, on the 10th floor of archdiocese headquarters, in the office of the secretary for clergy, the archdiocese kept what were known as "file 3" dossiers on current problem priests, McCulken testified.

And after Lynn left his job as secretary for clergy, the work of investigating sex abuse in the archdiocese was taken over by four new offices, including a victims assistance coordinator, an office of the delegate of investigations, an archdiocese review board, and an office for child youth protection, McCulken testified.

On cross-examination, Assistant District Attorney Mark Cipolletti targeted McCulken's estimates of how little time McCulken and Lynn spent investigating sex abuse in the office for clergy.

"What would be more important that stopping children from being sexually abused or raped?" Cipolletti asked.

"Nothing," McCulken testified. That's why he and Lynn "dropped everything when a call came in."

But all paper work regarding the alleged sex abuse had to go through the chain of command, first to the vicar for administration's office, on its way up to the cardinal, McCulken testified.

The prosecutor stuck to what McCulken and Lynn didn't do in the office for clergy.

"You never called the police not once," Cipolletti said.

"That's correct," McCulkin responded.

"You called your own lawyers?" Cipolletti asked.

"Correct," McCulkin said. He said that the archdiocese's lawyers had advised him that he did not have to contact the police as most sex allegations reported to the archdiocese were by adults in their 20s and 30s. The alleged abuse normally fell outside the statute of limitations for reporting a sex crime, McCulken said.

On redirect, the defense stuck to their script that Lynn was just a cog in the wheel down at archdiocese HQ.

"Lynn didn't make up the policies, did he?" asked defense lawyer Lindy.

"No," McCulkin testified.

Next on the witness stand was Msgr. James D. Beisel, who worked for a year as Lynn's assistant, from 1993 to 1994 in the office of secretary for clergy.

Beisel was the note-keeper when Lynn interviewed alleged victims of sex abuse. Beisel testified that Lynn acted like a priest while dealing with "someone who's in pain." Msgr. Lynn always acted "in a very compassionate way,"Beisel testified.

Beisel was asked about Lynn's confrontations with priests accused of sex abuse.

"No priest ever admitted the conduct," Beisel said.

Asked why he took the job on cross examination, Msgr. Beisel responded, "You don't say not to Cardinal Bevilacqua."

And why did he leave, Assistant District Attorney Patrick Blessington wanted to know.

"I didn't like the job," Beisel said.

That prompted Blessington to point out that Lynn always had that option. He could have said, "I don't like the job," Blessington said. But instead, Lynn stayed for 12 years.

Blessington asked about Beisel's qualifications.

"Were you woefully unprepared?" the prosecutor wanted to know.

To investigate sex abuse, yes, Beisel testified.

The questioning on cross-examination turned to who typed up the list of 35 abuser priests that was subsequently ordered shredded by Bevilacaqua. Beisel remembered helping Lynn to compile the list, but said he couldn't remember who typed it up, even though a post-it with Beisel's handwriting on it was found on one typed version of the list, with the note saying it was Lynn's copy.

"Oh, we having memory problems again, Monsignor?" Blessington asked.

Beisel responded that he was trying to get at the truth, but that he had "no idea" who had typed the memo. Blessington noted there were only two suspects, Msgr. Lynn and Msgr. Beisel. Didn't the witness remember typing up the list?

"Not to my recollection," Beisel said.

Blessington griped about Beisel being "a man of the cloth, a man of God" who couldn't remember who typed the names of 35 priests suspected of sexually abusing children. You'd think you'd remember something like that.

"You don't remnember typing this list?"the prosecutor asked.

"That's what I'm saying," Beisel said.

"You're not trying to help your friend?" Blessington suggested.

Beisel said he was trying to remember what really happened.

So the defense in the case, which opened Tuesday with testimony from a trio of monsignors, is scheduled to continue Wednesday with the reading of documents into the record, and some kind words from character witnesses.

By noon, however, it may be the moment of truth. The defense could rest its case. The other option is the "wild card" suggested by defense lawyer Thomas Bergstrom last week to Judge M. Teresa Sarmina.

The defense could put Monsignor Lynn on the witness stand to testify in his own defense.

It's a risky move. For the past eight weeks of trial, the accepted logic has been that you don't put an affable priest like Msgr. Lynn, a guy not used to scrapping, up against a pro like Assistant District Attorney Patrick Blessington. Lynn could get eaten alive.

It doesn't help that Blessington of late has been warming up for his closing argument by breathing fire from the prosecution table, while calling Lynn a liar every five minutes.

But before he delivers that closing, Blessington would love a shot at Lynn.

Again, the prevailing wisdom has been that the defense would not risk putting Lynn on the stand. But what if the defense concludes that the case may already be lost? It's fourth and long, and they have nothing to lose by going with a Hail Mary.

They may send in Lynn to see what he can do.

In his grand jury testimony that's been read into the record, Lynn comes off as a bumbling gumshoe when he's on the trail of a pedophile priest. But he's also candid and seems like a regular guy. That could help with the jury.

And if Blessington continues to rain hell fire, he might actually help the defense by making the jury feel sympathetic toward the monsignor.

Sunday, May 20, 2012

For the past eight weeks, as the prosecution presented its case against Monsignor William J. Lynn, district attorneys and defense lawyers kept mentioning three names: Cullen, Molloy and Cistone.

The same three names appeared over and over again on documents marked "confidential" that were repeatedly displayed on courtroom computer screens, as evidence of a conspiracy from the secret archive files.

Cullen, Molloy and Cistone were the three top guys in the archdiocese chain of command just below Cardinal Anthony J. Bevliacqua. All three outranked Msgr. Lynn, the lone man at the defense table left holding the bag for the sins of an entire corrupt organization.

When the defense presents its case next week in the archdiocese sex abuse trial, expect to hear a lot more about Cullen, Molloy and Cistone. Defense lawyers are apt to invoke the trio as often as possible in their efforts to convince a jury that Lynn was just a lackey down at Archdiocese HQ, and not a guy who wielded any power.

So who are these guys, and why aren't they sitting at the defense table with Msgr. Lynn?

* * *

Edward P. Cullen, 79, bishop emeritus of Allentown, Pa., formerly served as Cardinal Bevilacqua's vicar for administration from 1988 to 1998, while he functioned as the number two man in the archdiocese. Bevilacqua gave him the title vicar general in curia.

Msgr. James E. Molloywas the former assistant vicar for administration under Cullen who testified before the 2005 grand jury that investigated sex abuse; the following year, Molloy was found dead, at age 60.

Joseph R. Cistone, 63, now bishop of Saginaw, Mich, served in Philadelphia as the former assistant vicar for administration under Cullen from 1994 to 1998; he was subsequently promoted to vicar for administration, serving from 1998 to 2009.

Molloy is dead; Cullen and Cistone aren't talking, and nobody expects them to be called as witnesses this week.

William R. Spade is a former assistant district attorney assigned to the 2005 grand jury that investigated sex abuse in the archdiocese; he's now a criminal defense lawyer. Spade got to know the cardinal's top aides, as well as the cardinal himself, while working as a grand jury prosecutor.

Cullen, according to Spade, was "much more likable than Bevilacqua, he seemed more forthright. He seemed like he was trying to be of help, but looking back on it, I think he kind of played us a little bit," Spade said.

"He came across as a better salesman than Bevilacqua," Spade said of Cullen. "He came across as being earnest. He acknowledged that the archdiocese had made mistakes in dealing with these priests."

One such mistake was published last year in transcripts obtained by The Philadelphia Inquirer. The grand jury questioned Cullen about an abuser priest, Father Robert L. Brennan. Brennan, accused of misconduct, had been shipped off for psychiatric evaluation to St. John Vianney, the archdiocese facility for sex addicted priests. But parishioners were told Father Brennan was off on a religious retreat.

"It's not the truth," Cullen told the grand jury.

"It was a lie, wasn't it?" a prosecutor asked.

"You could call it that," Cullen said.

Cullen, a former football and track star at West Catholic High "could be a charming guy, a man’s man, a little rough," Spade said. "You could picture him having a few beers and talking sports if he wasn’t a priest." Unlike the rest of the crew at the archdiocese, "Cullen was not cold, he laughed, he told jokes," Spade said.

But to John Patullo, a financial analyst who worked for nearly a decade at the archdiocese, from 1985 to 1995, Cullen had a different image.

Cullen was "a cigar-chewing Main Line guy with a cell phone and a car phone in his Buick LeSabre Limited that had to have every option," Patullo said. "Be good to yourself," Cullen used to tell Patullo. When Cullen's new Buick arrived minus front-seat dual climate control, the only option Cullen didn't get, the vicar for administration reprimanded the archdiocese employee who ordered the Buick, Patullo recalled.

Cullen dined at Yangming, the Bryn Mawr landmark voted the best Chinese restaurant in America, and turned in weekly expense receipts to the archdiocese, Patullo said. Every Friday, Cullen left archdiocese headquarters early to drive down to his ocean-front summer home in Avalon, valued at nearly $1 million, and every Monday, he showed up late for work, his cigar in hand.

"This guy is a potentate," Patullo said. "He's all about himself. He was like a corporate executive all dressed in black."

Cullen didn't live in a rectory. As chaplain of St. Edmund's Home for Crippled Children in Rosemont, he had his own apartment in a wing of the building. "I was in there, it was beautiful," Patullo said. "He continued to use those private quarters even when he became the bishop of Allentown."

As vicar for administration, Cullen had the power to sign the cardinal’s name, Patullo said. "He had all the administrative power of the cardinal over the diocese." Cullen was often seen walking with the cardinal outside archdiocese headquarters at 222 N. 17th St. The two men were usually deep in conversation, Patullo said. He had no doubts that Cullen knew everything that was going on in the archdiocese.

* * *

Msgr. Molloywas a complicated guy.

"Looking back on it, I really had affection for the guy, but it's hard now not to draw the conclusion that he wasn’t completely honest with us," Spade said.

At the grand jury, Molloy was asked whether he knew about any document shredding at the archdiocese. No, he said. But after Molloy died, in 2006, a note in Molloy's handwriting was discovered, describing how in 1994 he had shredded four copies of the same document, at Bevilacqua's request, but kept one copy just in case. The "shredded memo" was a list of 35 abuser priests drawn up by Lynn. On the handwritten note, Molloy said he did the shredding, and Cistone wrote that he was a witness.

Molloy had a wry sense of humor, was paranoid, and a conspiracy theorist, Spade said.

"He told me that the archdiocese [and the church] was 100 times more sophisticated than La Cosa Nostra in their criminal activity," Spade said. "He told me a couple of times that he expected retribution for his betrayal of the organization, but he said it would be done so subtly that he would never know it," Spade said. "No lie. So when I heard he 'died' of a heart attack while alone in his room in the rectory, I remembered what he had told me."

Patullo agreed that Molloy was a conspiracy theorist, especially about the Kennedy assassination. "He loved James Bond, he loved intrigue, he loved spy stuff," Patullo said. "He was secretive, conspiratorial, loved mystery, intrigue, and thought of himself as being highly intellectual."

"His job was to put everything in writing," Patullo said of Molloy. "The cardinal wanted everything in writing. Everything had to be legal, everything had to be documented."

The cardinal also wanted complete control over the archdiocese, Patullo said, and Molloy was there to help implement martial law. Patullo said he learned that lesson early on while working as capital projects coordinator in the office of vicar for administration.

The cardinal got upset with the construction of St. Cornelius Church in Chadd's Ford. "The parish building committee pushed the design of that church," Patullo recalled. "The cardinal thought it looked like a barn," Patullo said. His Eminence preferred medieval-looking churches. After St. Cornelius was built, the cardinal wanted to have control over all church buildings projects.

Archdiocese officials debated another capital project in 1993, the purchase of a $260,000 house in Radnor Township, Delaware County, as an office and residence for the regional vicar, as well as additional parking for the parish.

Patullo was against the purchase because the house was a single home located next door to the parish. The price was far above appraised value, and the township most likely would not approve any additional parking, Patullo told his bosses. Also siding with Patullo was the archdiocese's real estate lawyer, and the director of temporal services who was the former managing partner of a Big Eight accounting firm.

But none of that business savvy impressed Molloy. All that mattered was that the cardinal wanted this done.

"Whose side are you on anyway," Patullo recalled Molloy snarling at him. "It's us against them," Molloy told Patullo, meaning the cardinal and his guys were taking over the archdiocese, and it didn't matter what the professionals had to say.

Molloy, however, could be charming, Patullo said. He was a former parish priest who was overjoyed to be working for the cardinal. Bevilacqua had drafted Molloy into the archdiocese bureaucracy because he was impressed by him.

"Molloy was tickled pink to be working for the cardinal," Patullo said. "I respected Molloy, but I never trusted him. because I always knew he had a hidden agenda."

When the shredded memo showed up in a locked safe, Patullo thought it was "classic Molloy."

"He always had to have the goods on somebody," Patullo said. "He was like J. Edgar Hoover."

* * *

Spade and Patullo didn't have much to say about Cistone.

Cistone, Spade said, was an "up and coming ambitious guy who saw himself as going places."

"He seemed to be a pleasant guy but more business-like, more professional maybe less needy," Patullo said.

Spade and Patullo disagreed about Msgr. Lynn.

"He had no personality, he was just a big zero," Spade said of Lynn, who was a frequent witness in front of the grand jury. "He's got no real warmth, no sense of humor," Spade said. "He was kind of a lackey, a company man, the man in the gray flannel suit."

"I liked Msgr. Lynn," Patullo said. "What was there not to like? he was a friendly, polite, nice guy. He didn't really belong in that group."

Lynn's office was two doors down from Patullo's on the 12th floor of archdiocese headquarters, adjacent to the storage room that contained the secret archives. "I think he was very scared, very nervous about working for Bevilacqua," Patullo said. "You could see he was on edge a lot, maybe in over his head."

"Any time I ever walked into his office, he would turn a piece of paper on his desk upside down," Patullo said. "He would be rushed, in a hurry, secretive, and moving pretty fast for a big guy."

Spade and Patullo agreed on Bevilacqua.

When Bevilacqua was subpoenaed to the grand jury, Spade's boss, District Attorney Lynne Abraham, warned him to be careful, because the cardinal was "so smart and charming."

"She was kind of gushing in her praise," Spade recalled. "But after I had spent 30 hours with the guy in the grand jury, I thought to myself, what the hell is she talking about? He had no charm at all and did not seem particularly smart to me either. He was extremely self-important and condescending, and was obviously not accustomed to people challenging him."

"I never felt a second of sympathy for the guy, which is unusual for me," Spade said. "I have managed to summon feelings of empathy for cold-blooded killers, and can generally find something redeeming in almost anyone."

Patullo knows what Spade is talking about. Patullo used to like Bevilacqua until he took a temporary job chauffeuring Bevilacqua around town for four or five weeks, after the cardinal's regular driver suffered a heart attack.

Patullo figured the move would help his career; he envisioned himself getting tight with the boss. But he wound up hating the cardinal.

"You had to be on time to the minute when you were going anywhere," Patullo recalled. "You had to be at his beckon call seven days a week."

If you were early to an appointment, Patullo said, you had to pull over a couple of blocks away and wait, until you arrived precisely on time.

When Patullo pulled the Ford Crown Victoria up to cardinal's mansion, he had to park the car just right so that the car door would open up right across from the brass rail at the front door. The car couldn't be parked a foot to the left, or the right, it had to be right in line with the front door of the mansion, so that the cardinal could walk down the steps and climb right into the car.

"When waiting for the cardinal, you couldn't walk on the carpet in the sitting room in the mansion, because the cardinal didn't like indentions on the rug," Patullo said. You couldn't put your hands on the brass rail outside the mansion front door, because the door man had just polished it.

And of course, you were not allowed to speak to His Eminence, unless he spoke to you first.

"He's just a cold hearted guy," Patullo said. "A loner, a recluse. He would pass right by the dining room where Cardinal [John] Krol was, and not even utter a word."

His Eminence had the same effect on the grand jury.

"The grand jurors, in my opinion, loathed Bevilacqua, and would have indicted him in a minute," Spade said. Spade thought the cardinal and all of his aides should have been indicted in 2005, but his bosses disagreed. That was a big reason he left the district attorney's office. He's still mad about it eight years later.

Spade believed that the cardinal and his aides, including Monsignor Lynn, were engaged in a conspiracy to obstruct justice and endanger the welfare of children. His bosses said the law wasn't there, but Spade said that in his opinion, the DA should have pushed the envelope, indicted the cardinal and his men, and let a judge or jury decide.

Saturday, May 19, 2012

On Thursday, after the prosecution closed their case, Judge Sarmina swiftly dismissed the conspiracy charges against Monsignor Lynn and Father Brennan. Although the move caught some observers by surprise, it was likely not a surprise to the prosecutors. To prove a criminal conspiracy, the Commonwealth has to prove beyond a reasonable doubt that the defendants had a “shared criminal intent,” defined by Pennsylvania law as “the common understanding that a particular criminal objective is to be accomplished.” Commonwealth v. Lambert, 795 A.2d 1010 (Pa. Super. Ct. 2002). Whatever Monsignor Lynn’s crime was, the evidence did not show, beyond a reasonable doubt, that he intendedfor children to be molested. Thus, the conspiracy charge was plainly difficult to prove from the onset, and the dismissal is not surprising given the actual evidence presented.

Which brings us to the core question of this case: What was Monsignor Lynn’s intent?

For centuries, the English common law, and subsequently the American common law, has required that criminal convictions include proof of two separate elements: the mens rea (the guilty mind) and the actus reus (the guilty act). In Lynn’s case, he is charged with endangering the welfare of children, and I don’t think anyone can genuinely dispute that Monsignor Lynn’s actions in fact endangered the welfare of children within the Archdiocese of Philadelphia’s parishes and schools. There is no denying that, as of at least February 18, 1994, when Lynn drew up the list of 35 sexually abusive priests, Lynn’s acts — such as his involvement in transferring priests around once allegations were made — and his inactions — such as his failure to ever report any of them to the police — allowed abusive clergy to keep preying on children in the community. But it is a fundamental premise of our criminal law that the magnitude of the damage caused is not by itself enough to prove that a crime occurred, the prosecution must also prove he had the mens rea for the crime.

Proving mens rea is inherently difficult; “for who among men knows the thoughts of a man except the man’s spirit within him?” 1 Corinthians 2:11. It is only on television that defendants suddenly concede at trial their own guilt and malicious intent. In real courtrooms, defendants never confess on the stand, and they also typically have not left behind “smoking gun” emails or letters outlining their wicked plans. Mens rea is thus typically proven through circumstantial evidence, and that’s why the prosecution put on the case they did, which at many times looked more like an indictment of the Catholic Church itself than of Lynn personally.

Why did it matter that the Archdiocese of Philadelphia was aware of sexually abusive priests before Lynn was born, continuing through until Lynn’s appointment as Secretary of the Clergy in 1992? Because, as Ralph Cipriano has described on this blog, Lynn’s defense has focused on his limited abilities as a mere priest. He was not, as he testified, a lawyer (though Cardinal Bevilacqua was), nor was he a detective, nor did he have any sort of training in psychiatry or psychology. The District Attorney’s Office has put on a broad circumstantial case to show that Lynn was not expected to be a detective, nor a prosecutor, nor a criminal profiler, but instead was only supposed to be a reasonable person —

and what reasonable person would create a list of dozens of priests with abuse accusations against them and then, instead of alerting the authorities, actually enabled the priests to abuse more children by shuffling them around to unsuspecting parishes once accusations were lodged?

That’s why the tortuous path taken by Lynn’s February 1994 memo after it was written is so important. The memo, of course, demonstrates that many officials within the Archdiocese of Philadelphia, including Lynn, knew of credible molestation accusations against priests within the Archdiocese. That fact alone could, as part of the overall circumstantial case, show that Lynn knew he was endangering children by not acting on that list to stop future abuse. But the strange tale of how that list finally came to light shows something else, too: consciousness of guilt, an awareness that the list itself implicated the Archdiocese and its officials. Put another way, if the list wasn’t incriminating, why hide it? Indeed, why did the Archdiocese have any “secret archives,” a term the Pennsylvania Catholic Conference itself used to describe the files?

Dozens of books have been written by lawyers, jury consultants, law professors, and others about effective trial strategies that help persuade jurors and judges. Two of the most common trial advocacy techniques are primacy and emphasis. “Primacy” is the idea that jurors will more heavily weigh information they hear first, because it sets the stage of all the evidence they hear after that. “Emphasis” is the competing, but not necessarily contradictory, notion that jurors will also heavily weigh the last evidence they hear, because it concludes the story and provides a framework for re-evaluating the evidence presented throughout the case.

Looking at the prosecution’s case, it’s not difficult to see how they used primacy and emphasis to build a case that Lynn knew from the beginning of his tenure that the clergy had a serious problem that was endangering children throughout the Philadelphia area. Recall that the prosecution began with evidence about Father Avery, against whom the evidence was so overwhelming that he plead guilty rather than face the jury. In many ways, though, the core of the claim against Lynn relating to Avery is not whatbut when: as Ralph Cipriano reported here, the testimony at trial showed that Lynn began his investigation of Avery in October of 1992, soon after Lynn took his position as Secretary of the Clergy. The primacy of that evidence is obvious: the prosecution wanted the jury to know that, from the very beginning of Lynn’s tenure, he knew the Archdiocese had a problem with abusive and predatory priests.

Then, the prosecution closed its case by describing the long, strange trip the February, 1994 memo took before it was revealed to the public, a means of emphasizing that Lynn knew he was guilty and knew the memo implicated him. Lynn created the list in February of 1994 and sent it to Monsignor Molloy, the Assistant Vicar for Administration. In response, Cardinal Bevilacqua ordered the list be shredded, but Molloy shredded only four copies and kept Lynn’s. That list then apparently vanished, although Bevilacqua obviously remembered it when he mistakenly instructed his spokesperson to reference "35 abusers" in 2002, but the Archdiocese’s in-house lawyer, Coyne, was unable to get copies of it from Molloy, Bishop Cullen, or Father Cistone, who had witnessed the shredding of the other copies. The list was then discovered again in 2006 in the office of the Secretary of the Clergy by the Director of Operations, where its path becomes unclear. Coyne says he was given it by Lynn's replacement, but Lynn's replacement doesn't recall that, and the list again vanished (Coyne says he forgot about it). It was only in 2012, after Welsh & Recker took over as the outside lawyers for the Archdiocese, that the document was produced by Coyne when Welsh specifically requested it.

Why was the memo initially shredded, then buried twice? The prosecution has a simple answer for that: because Lynn and the others were all trying to hide it. That, of course, is circumstantial evidence of consciousness of guilt. The prosecution thus began with Lynn's knowledge of clergy abuse as early as he started in 1992 and ended with Lynn leaving with the list he prepared intentionally buried. That, the prosecution believes, has proven the elements of endangering the welfare of a child, explained more in my post here. Lynn was "aware of [his] duty to protect the child[ren], ... aware that the child is in circumstances that could threaten the child's physical or psychological welfare ... failed to act or must have taken action so lame or meager that such actions cannot reasonably be expected to protect the child's welfare." Commonwealth v. Winger, 957 A. 2d 325 (Pa. Super. Ct. 2008)(intrepreting 18 Pa.C.S. § 4304).

The defense begins their case next week, and then it goes to the jury.

Thursday, May 17, 2012

That's what happened Thursday when Judge M. Teresa Sarmina tossed two charges of conspiracy to endanger the welfare of children that linked the two defendants, Father James J. Brennan and Msgr. William J. Lynn.

The judge made her surprise decision on the day the prosecution rested, after presenting eight weeks of testimony from some 48 witnesses and thousands of pages of exhibits. There's a gag order in the case that prevents lawyers on both sides from talking to the media. However, it wasn't hard to read the contrasting reactions.

Defense lawyers, the two defendants and their relatives were beaming, laughing and shaking hands as they filed out of the courtroom. Meanwhile, prosecutors said little and moved swiftly toward the elevators.

As detailed previously on this blog, the cases against Father Brennan and Monsignor Lynn have been moving in opposite directions. The case against Father Brennan has unraveled since the 2011 grand jury report, when an original charge of rape was downgraded to attempted rape; meanwhile the evidence against Msgr. Lynn has continued to pile up.

The only concern on the Father Brennan side of the case has been if the monsignor goes down hard, does he take the priest with him. Father Brennan's lawyer, William J. Brennan, was overheard laying some gallows humor on Assistant District Attorney Mark Cipolletti as they left the courtroom Thursday.

"Hey pal, now I know how the first male passenger who got on the lifeboat on the Titanic felt," Brennan told the laughing prosecutor after the judge made her decision to drop one charge of conspiracy to endanger the welfare of children against Father Brennan, and another charge of conspiracy to endanger the welfare of children against Monsignor Lynn.

Father Brennan still faces charges of attempted rape and endangering the welfare of a child. Msgr. Lynn still faces charges of endangering the welfare of a child, as well as conspiracy to endanger the welfare of children in relation to the other original defendant in the case, Father Edward V. Avery. The former priest on the eve of trial pleaded guilty to endangering the welfare of a child, conspiracy to endanger the welfare of a child, and involuntary deviant sexual intercourse with a 10-year-old boy.

The immediate fallout is that Msgr. Lynn, who was facing a prison sentence of 14 to 28 years if convicted on all the charges, now faces a prison term of 10 1/2 to 21 years. And Father Brennan, who was looking at 17 to 34 years if convicted on all the charges, is now looking at 13 1/2 to 27 years.

But the bottom line in the Archdiocese of Philadelphia sex abuse trial is that the main link between the two defendants, namely the conspiracy charges, has been severed. Father Brennan's fate now rests on the credibility of a single accuser, 30-year-old Mark Bukowski, who has claimed that the priest attempted to rape him when he was 14 years old.

There is plenty of reasonable doubt in the case. Even the victim's mother has testified that "I will never really know what happened" between her son and Father Brennan.

To this courtroom observer, the conspiracy charges never made a lot of sense. The prosecution had charged that somehow, Msgr. Lynn had colluded with both Father Avery and Father Brennan to keep both priests in active ministry, so that they could harm children.

This conspiracy was alleged without any evidence ever being presented that the trio met somewhere to plan such an enterprise. After eight weeks of testimony, the more logical conspiracy to keep pervert priests in ministry and out of jail was between Msgr. Lynn and the superiors he reported to in the archdiocese chain of command, all the way up to the man at the top, Cardinal Bevilacqua.

The cardinal, however, died Jan. 31. Another one of Msgr. Lynn's bosses, Msgr. James E. Molloy, was found dead in 2006, of an apparent heart attack. Other bosses that Lynn reported to include Edward P. Cullen, now bishop emeritus of Allentown, Pa., and Joseph R. Cistone, bishop of Sagninaw, Mich. Neither Cullen or Cistone was called by the prosecution to testify in the case.

Cistone was mentioned in court Thursday by Thomas Bergstrom, a lawyer for Msgr. Lynn. Bergstrom asked Detective Joe Walsh if he knew where Cistone was.

"Did you drive out and talk to him?" Bergstrom asked. The prosecutor objected, and the judge sustained the objection.

Bergstrom asked Walsh if he had talked to Cullen as well, but the prosecutor objected again, and the judge sustained that objection as well.

When Molloy's name came up, Assistant District Attorney Patrick Blessington asked Walsh to tell the jury where he would have to go to interview Molloy.

"Msgr. Molloy is deceased," Detective Walsh said.

The defense went through its list of potential witnesses Thursday, and neither Cullen or Cistone was mentioned. So it appears that Lynn's two surviving former superiors will not have to go through the unpleasantness of testifying at this trial.

Jeff Lindy, another defense attorney for Msgr. Lynn, called the conspiracy charges in the case an "ill conceived prosecution," because no evidence had been presented to show the defendants ever conspired to endanger the welfare of a child.

In the case of Father Brennan, the defendant was on a leave of absence when he allegedly attempted to rape Mark Bukowski, Lindy told the jury. Both Lindy and defense attorney Brennan pointed out that prior to the attempted rape, there were scant warning signs that Father Brennan might pose a danger to children.

The priest had never been previously accused of abuse, and did not have a secret archive file. The only evidence presented in the case against Father Brennan was a report from a nun who complained that Father Brennan threw noisy parties at the rectory, and a high school administrator who complained that he had once seen Father Brennan wrestling with a student. Was that sufficient evidence for Msgr. Lynn to conclude that Father Brennan was a potential rapist?

Regarding Father Avery, Lynn had sent the priest shipped to a psychiatric hospital for nine months, where he was evaluated and found to not have a sexual disorder. The monsignor had also arranged weekly psychotherapy for Avery. The priest was a member of Alcoholics Anonymous, and lived in a rectory, where he was surrounded by five other priests who could an eye on him. So how was Lynn to know that the 10-year-old altar boy that Father Avery raped was in harm's way, Lindy asked.

When the case began eight weeks ago, defense attorney William J. Brennan told the jury in his opening statement that the vast majority of the evidence presented by prosecutors in the case would have nothing to do with his client. Brennan told the jury that if they looked over at the defense table during the trial, they might see him doing the crossword puzzle. Indeed, of the 48 witnesses in the case, only five had anything to say about Father Brennan.

After most witnesses testified, defense attorney Brennan had a habit of making the point to the jury that since none of the evidence presented by that witness concerned his client, Father James J. Brennan, he had no questions for the witness. The defense lawyer's mantra usually evoked chuckles and smiles from the jury, which served to reinforce his point.

Now, after eight weeks of testimony, the original idea of bundling Father Brennan and Msgr. Lynn together as defendants in the same case has been exposed as both faulty reasoning and a waste of time, as it's clear the two men had nothing to do with each other.

Defense attorney Brennan underscored that point when he told the judge about the time he pondered whether his client should cop a plea. "I couldn't even rat Msgr. Lynn out, because Father Brennan doesn't know anything," the defense lawyer told the judge.

Blessington, however, said a jury should decide if there was a conspiracy among the defendants, especially "after so many children were raped." Blessington asserted that Lynn was anxious to keep "wolves" like Avery and Brennan "in sheep's clothing" so that they could continue to prey on children.

"They didn't care about the children," Blessington told the judge, as a possible warm-up for a closing statement to the jury. "It was all about protecting Mother Church."

Blessington said that Lynn didn't listen to the doctors at St. John Vianney, the archdiocese clinic for treating sexually abusive priests, when they told him, "don't put him [Avery] near kids." Lynn served as a member of the board of directors at St. John Vianney, Blessington told the judge.

Wednesday, May 16, 2012

Monsignor William J. Lynn confessed to a grand jury back in 2004 that he wasn't qualified to investigate sexually abusive priests.

The monsignor's admission came in response to a grand jury prosecutor, who asked Lynn if he realized that he needed more training to investigate sex crimes committed by priests against minors in the Archdiocese of Philadelphia.

"Today I do," the monsignor told the grand jury back in 2004. When the grand jury prosecutor asked Lynn point-blank if he was qualified to investigate sex abuse, he responded simply, "No."

The monsignor told the grand jury that he studied theology and philosophy at St. Charles Borromeo Seminary, and also had a master's degree in education administration. But when you're trying to outwit a pedophile, "a degree in psychology, that would help," the monsignor told the grand jury. So would some law enforcement seminars.

Instead, the monsignor testified that he relied upon "on the job" training when he became the archdiocese's secretary for clergy back in 1992. Shortly after he took the job, Lynn found out that a major part of his duties involved investigating priests accused of sexually abusing minors.

"I thought I was dealing with them adequately," the monsignor told the grand jury. But he admitted, "I don't necessarily have the training to do it."

Lynn's 2004 grand jury testimony was read into the record Wednesday at the Archdiocese of Philadelphia sex abuse trial by Assistant District Attorney Anthony Pomeranz. Lynn is the first Catholic administrator in the country to be accused of conspiring to endanger the welfare of children by transferring abuser priests from parish to parish, often without any warnings to pastors or parishioners.

In 1994, two years after he had taken over as secretary for clergy, Lynn decided to do an inventory of the archdiocese's secret archive files, to figure out exactly how many sexually abusive priests the archdiocese had on its payroll.

The job was daunting. The secret archives were held in two large file cabinets containing 323 confidential files dating back to at least the 1940s. Lynn told the grand jury that his bosses weren't much help.

"I didn't get any direction," the monsignor told the grand jury.

The secret archive files contained all sorts of allegations from alleged victims, both named and unnamed. Cardinal Anthony J. Bevilacqua helped limit Lynn's focus. During a conversation one day, the cardinal told Lynn, "We can't get into anonymous allegations or complaints,"the monsignor testified.

So when Lynn went through the secret archive files, he compiled a list of only 35 priests who had either been convicted or accused of sexually abusing minors. When the district attorney decided to investigate, a wider net was cast. In response to subpoenas, the district attorney received 140 secret archive files from the archdiocese pertaining to abuser priests.

The monsignor told the grand jury that the list he drew up included only three confirmed pedophiles and a dozen priests credibly accused of sex abuse. For an allegation to be deemed credible, Lynn told the grand jury, he basically needed a priest to confess that he did it.

As to whether he should notify pastors that he was transferring a sexually abusive priest into their parish, "I think it would depend on the circumstances," the monsignor told the grand jury. It would have to be decided on "a case by case basis."

"There wouldn't be a general announcement about what was in a priest's background," Lynn testified.

What little on the job training Lynn received came from his predecessor on the archdiocese pervert beat, the late Msgr. James E. Molloy. Some of Molloy's notes to Lynn were read into the record Wednesday by Detective Joseph Walsh.

Walsh read several versions of Lynn's list into the record. The list was ordered shredded by Cardinal Bevilacqua in 1994, but Msgr. Molloy retained one copy that was found in a locked archdiocese safe in 2006. Several other working versions of the list were also found on diskettes, Walsh testified.

A prominent name on Lynn's list was Father Edward V. Avery, a former defendant in the case who has already pleaded guilty to conspiracy and involuntary deviant sexual intercourse with a 10-year-old child. The other defendant in the case, Father James J. Brennan, was not mentioned in any of the versions of the Lynn memo read into record by Detective Walsh. Father Brennan is accused of conspiracy and attempted rape of a 14-year-old.

The archdiocese sex abuse trial is now in its eighth week of testimony in Courtroom 304 at the Criminal Justice Center. The prosecution is expected to rest its case at the end of court Thursday. There is no court scheduled for Monday. The defense is expected to put on its case during the remainder of next week.

Tuesday, May 15, 2012

Father Michael J. McCarthy like to sleep naked with teenage boys who stayed over his beach house at the Jersey Shore. He also ran a travel business on the side, planning gay cruises to places like Thailand.

Prosecutors on Tuesday used documents from the secret archive files introduced by Detective Joe Walsh to tell Father McCarthy's story to the jury in the Archdiocese of Philadelphia sex abuse case.

Assistant District Attorney Patrick Blessington suggested that the church had turned a blind eye to Father McCarthy's transgressions with teenage boys, as long as scandal could be avoided by transferring the priest to another parish. In September 1992, the cardinal promoted Father McCarthy to pastor of Epiphany of Our Lord Church in Norristown, despite two complaints of sex abuse in his file.

It was the priest's business venture that got him into trouble, the prosecutor said, especially after the cardinal found out that Father McCarthy was taking business away from another local travel agent who had just donated $25,000 to the archdiocese for Catholic Life 2000.

The first complaint in the archdiocese's secret archive files was made against Father McCarthy back in 1986. A mother reported to the archdiocese that in biology class at Cardinal O'Hara High, Father McCarthy had touched her son in an improper way, by running his hands down the boy's back and buttocks.

The next victim, a married father of two daughters, called the archdiocese on Nov. 27, 1991, to say that Father McCarthy had abused him sexually from 1974 to 1976, when the boy was a student at Cardinal O'Hara High School in Springfield, and the priest was his biology teacher. McCarthy was on the faculty at Cardinal O'Hara from 1965 until 1989.

Father O'Hara invited the boy to stay at his beach house in Margate. The place had two bedrooms, but one belonged to his late mother, the priest told the victim, so that nobody else was allowed to sleep there. So the boy had to share the priest's bedroom, and his bed.

The bar at Father McCarthy's beach house stocked with at least 50 bottles of liquor, so the priest could serve lots of alcohol to his teenage house guests. He slept naked, and insisted the boys do the same.

The victim said that one night, after several drinks, Father McCarthy began stroking the boy's genitals, to the point of orgasm. The priest told the victim he did this with other boys that he brought to the beach house. Then the priest "masturbated himself," the victim said. The victim gave the names of four other victims to Msgr. James E. Molloy, assistant vicar for administration, and his assistant, Msgr. William J. Lynn.

Msgr. Lynn typed up his notes on Jan. 23, 1992, and had the victim sign it. In the margin, Msgr. Molloy admonished Msgr. Lynn for being too forthcoming. "Unnecessary statement," Molloy wrote. "Never admit to victim that there have been other cases."

On Feb. 17, 1992, Father McCarthy denied the victim's accusation, writing, "To the best of my recollection, the incident alleged ... never took place." A handwritten note on the priest's declaration, presumably from one of the monsignors, described the priest's denial as "very guarded" and "suspicious."

At the time, Father McCarthy was parochial administrator at St. Kevin in Springfield, but the priest wanted to be promoted to pastor.

But first, the cardinal's men had to decide what to do about the victim's charges. On July 14, 1992, Msgr. Lynn wrote a "confidential memorandum about his meeting with Father McCarthy and Msgr. Molloy. The purpose of the meeting, Lynn wrote, was to "convey Cardinal Bevilacqua's directions to Father McCarthy concerning the pastorship of St. Kevin Parish."

"Cardinal Bevilacqua has decided it is in Father McCarthy's best interest not to be appointed pastor of St. Kevin Parish," Lynn wrote. "The reason for this is the possibility that if appointed pastor of St. Kevin Parish, he could be the subject of great publicity and tarnished reputation should the complainant go public with his story."

"Monsignor Molloy stated that there is the possibility of Father McCarthy being appointed pastor at another parish after an interval of time has passed," Msgr. Lynn wrote. "This parish would be distant from St. Kevin Parish so that the profile can be as low as possible and not attract attention from the complainant. Monsignor Molloy stated that the Archbishop was not implying doubt about Father McCarthy's ability to be a pastor."

In September 1992, Bevilacqua appointed Father McCarthy as pastor of Epiphany. Within two weeks of his appointment, Father Michael O'Malley, a fellow priest at Epiphany complained to Msgr. Lynn about Father McCarthy's open discussions about his visits to gay bars, and his constant sexual jokes and innuendos. Father O'Malley also told Msgr. Lynn that Father McCarthy kept a bag of gay pornographic tapes in his closet at the rectory. He also wasn't an easy guy to live with. Father McCarthy was described by his fellow priests as "a man full of rage."

At the time, the archdiocese was running a big fundraiser, Catholic Life 2000. On April 13, 1993, Cardinal Bevilacqua received a letter from a local travel agent, Lily Giuffrida, who said that her husband had just donated $25,000 to Catholic Life 2000. That had to get the cardinal's attention.

Giufrida explained how she and her husband ran a travel agency that used to do a lot of business with the travel club at Epiphany of Our Lord. Her travel agency also had a policy of providing free trips for priests and nuns.

But after Father McCarthy took over Epiphany, Giuffrida learned that the priest was himself a travel agent, and that he booked tours through a rival travel agency. Giuffrida told the cardinal that she was upset because she and her husband "donate to Churches who now become our competitors."

The secret archive files show that the cardinal took this complaint far more seriously than the previous complaints about Father McCarthy.

On April 20, 1993, according to the minutes of an "issues meeting," the cardinal "requested that a high priority be placed on procuring all the facts related to" Lily Giuffrida's charges. Two days later, Msgr. Lynn began an investigation.

Lynn visited the rectory when Father McCarthy was on vacation and found 13 gay porno videotapes in Father McCarthy's closet. He also found a copy of "A Guide to the Gay Northeast," and a gay travel guide to the hot spots of Thailand.

Msgr. confronted Father McCarthy on May 24, 1993, and informed him that moonlighting as a travel agent was a violation of canon law. Later that day, Cardinal Bevilacqua met with Father McCarthy at the cardinal's residence. In the secret archive files, the cardinal wrote, "It had to be very obvious from my interview and the interview with Msgr. Lynn that implications of the material found were that Father McCarthy was homosexual."

Two days later, Father McCarthy resigned as pastor of Epiphany and was placed on a health leave. The priest was shipped off to St. Luke Institute in Suitland, MD., where he was a patient from August 1993 until June 1994. The priest did not want to go to St. Luke's. Prior to his hospitalization there, Father McCarthy sent a newspaper story to Msgr. Lynn. In the article, the priest had underlined a passage where it was stated that St. Luke's used "chemical castration drugs" in therapy.

At St. Luke's, Father McCarthy was diagnosed as having a condition known as "homosexual ephebophilia," an attraction to post-pubescent boys. In the secret archive files, the therapists who treated the priest cited Father McCarthy's "sexual acting out behaviors" with eight high school students at his summer home.

On July 25, 1994, Cardinal Bevilacqua placed Father McCarthy on administrative leave, and limited his priestly faculties to celebrating private Mass for his own benefit.

Upon his release from St. Luke's halfway house in 1994, Father McCarthy got a job as a cashier on the graveyard shift at Merv Griffin's Resorts Casino in Atlantic City. But he still dreamed about being a priest.

In 1998, Father McCarthy wrote Msgr. Lynn, asking to be appointed as pastor to St. Kevin's parish. Lynn invited Father McCarthy to stop by his office and talk about it. In the meeting, Father McCarthy defended his conduct by saying he had "always acted out with age appropriateness" by having anonymous homosexual encounters with men in book stores or parks. He also challenged the accuracy of his diagnosis at St. Luke's.

The secret archive files show that Msgr. Lynn went through the motions of checking back with the therapists at St. Luke's, who said they had got it right the first time.

Then the archdiocese received another complaint about Father McCarthy. Two Irish immigrants wrote the archdiocese saying that Father McCarthy had let them live in a cottage on the grounds at St. Kevin's for five years, while he had a homosexual affair with one of the immigrants. The men said the archdiocese owed them $60,000.

Msgr. Lynn told Father McCarthy to seek voluntary retirement, but he did not retire until October 2003.

On cross-examination, Jeff Lindy, a lawyer for Msgr. Lynn, suggested to Detective Walsh, as he has previously, that Cardinal Bevilacqua was the puppet-master at the archdiocese, and that Lynn was just doing his bidding.

"He was the man at the top controlling the archdiocese," Lindy said of the late cardinal.

"He was the man at the top," Walsh replied.

"He had the final say," Walsh told Lindy during another point in the cross, but the detective cited other documents in the secret files that stated that the cardinal would "follow the recommendations of Msgr. Lynn."

Lindy pointed out that it was the monsignor who shipped Father McCarthy off to St. Luke's for evaluation, even though the priest had expressed concerns about "chemical castration drugs."

"Father McCarthy stayed at St. Luke's for a year or more, that place that he didn't want to go?"Lindy asked.

"That is correct," Detective Walsh replied. Lindy then tried to assert that it was also the monsignor who basically took Father McCarthy out of active ministry in 1993, by shipping him out to St. Luke's, and then recommending that the priest be put on administrative leave.

But Detective Walsh responded that Father McCarthy was still able to function as a priest periodically over the years at family weddings and confirmations.